Wanner v. Getter Trucking, Inc.

466 N.W.2d 833, 1991 N.D. LEXIS 36, 1991 WL 27268
CourtNorth Dakota Supreme Court
DecidedMarch 5, 1991
DocketCiv. 900285
StatusPublished
Cited by12 cases

This text of 466 N.W.2d 833 (Wanner v. Getter Trucking, Inc.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wanner v. Getter Trucking, Inc., 466 N.W.2d 833, 1991 N.D. LEXIS 36, 1991 WL 27268 (N.D. 1991).

Opinions

VANDE WALLE, Justice.

This is an appeal by the defendant, Getter Trucking, Inc., from a judgment of the District Court for McKenzie County entered on a jury verdict awarding the plaintiff, Rick Wanner, $700,000 for injuries proximately caused by the defendant’s negligence and from an order denying its motion for judgment notwithstanding the verdict or a new trial. We affirm.

Rick Wanner was injured in a fall from an oil derrick. At the time of the accident, Wanner was employed as a floorhand for Dual Drilling, an oil drilling company. Upon completion of a drilling project, Dual contracted with Getter Trucking for the transport of a derrick to another site. Because the derrick was being transported only a short distance, a “field move” was employed wherein the derrick is moved cross-country while left intact.

In preparation for the field move, the derrick was placed in a horizontal position. As part of the preparation, a crane, owned by Getter and operated by one of its employees, was used to hoist a travelling block assembly inside the derrick in order to secure it to the “top” of the horizontal derrick. The travelling block assembly consists of a travelling block connected by a joint or “knuckle” to a swivel hook. The entire assembly weighs 12,000 to 14,000 pounds. In order to secure the assembly to the derrick, Dual employees, Wanner and Ben Andreas, positioned themselves on top of the horizontal derrick. While the crane held the assembly in position to be secured by the Dual employees, the hook portion of the assembly shifted downward and the derrick vibrated. Wanner, who was standing on a six-to-eight-inch-wide beam on top of the derrick lost his balance and fell approximately thirty feet, landing headfirst on an outrigger of the crane.

Wanner filed suit against Getter Trucking, alleging that Getter’s employees had negligently rigged and hoisted the travel-ling block assembly, thereby allowing the assembly to shift and causing the derrick to vibrate. The jury returned a special verdict finding no negligence on the part of Wanner, assigning ninety percent of the negligence to Getter, and ten percent of the negligence to “others.” The jury awarded Wanner $700,000 in damages.

Getter raises several issues on appeal, the primary issue being whether the trial court abused its discretion in allowing William Bateman to testify as an expert witness. Rule 702, N.D.R.Ev., governs the admissibility of expert testimony and provides:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

The two-part test for the admission of expert testimony is “whether or not such testimony will assist the trier of fact and whether or not the witness is qualified as an expert.” Patch v. Sebelius, 349 N.W.2d 637, 643 (N.D.1984). The determination of whether or not to admit expert testimony rests with the sound discretion of the trial court, and will not be reversed on appeal unless the trial court has abused its discretion. Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155 (N.D.1985).

Getter asserts that Bateman was improperly allowed to present expert testimony on three subjects which did not assist the trier of fact. First, Bateman was allowed to give an opinion on the cause of the accident. Bateman testified that the derrick was shaken by the shifting assembly thereby causing Wanner to fall. Getter contends that this point was not contested, and therefore Bateman’s testimony could not have assisted the jury. Bateman expanded on that testimony, however, by expressing the opinion that inverted mud1 on [836]*836Wanner’s boots did not cause him to slip from the derrick, a point which was apparently contested. While part of his testimony may have been repetitious, Bateman did provide information on the cause of the fall which could have assisted the trier of fact.

Second, Bateman was allowed to testify that the method used by Getter to hoist the assembly was not the safest method available.2 Getter argues that the fact that there was a safer method was irrelevent until there was evidence that Getter violated an applicable standard of care. The question of a safer, alternative method may be considered by the jury, however, in determining whether the method actually used was reasonably safe and whether there were other methods which could have been used. Welsh v. Burlington Northern R.R. Co., 719 S.W.2d 793 (Mo.App.1986). Bateman’s testimony did not operate to increase the duty to which Getter was already bound but merely went to the question of reasonable care under the circumstances. See Wilhelm v. Detroit Edison Co., 56 Mich.App. 116, 224 N.W.2d 289 (1974).3 Whether a person of ordinary prudence would utilize a particular method for hoisting the assembly may depend upon the existence of viable alternative methods. The jury was entitled to hear evidence of safer methods in order to make a determination of whether or not a person of ordinary prudence would utilize the particular method utilized by Getter in rigging and hoisting the assembly.

Finally, Getter asserts that Bate-man’s testimony regarding the “standard of care” in North Dakota should not have been permitted. When asked by Getter’s attorney on cross-examination about the applicable “standard of care,” Bateman testified that “the standard of care would be that you would want to do whatever task you’re doing so as to minimize, if not eliminate, the possibility of harming someone or damaging equipment.” Getter argues that this standard is erroneous and the effect of permitting this testimony was to unduly prejudice Getter.

Bateman’s testimony may have been erroneous but it was fully responsive to a clear question asked by Getter’s counsel. Neither party objected to nor made a motion to strike the testimony. Getter’s counsel asked a dangerous question on cross-examination and cannot now ask this court to retract the question simply because it did not elicit the desired response. See State v. Haselhorst, 218 Neb. 233, 353 N.W.2d 7 (1984). The jury was properly instructed on the applicable standard of care thereby minimizing the possibility of any prejudice.

Getter next asserts that Bateman was not qualified to provide expert testimony, regardless of whether such testimony assisted the trier of fact. Getter argues that Bateman should not have been permitted to testify that there were safer methods for rigging the travelling block assembly because he had never seen a crane actually hoist an assembly nor had he seen the actual travelling block assembly or derrick involved in this case.

We have noted in previous cases that Rule 702 permits a generous allowance of the use of expert testimony. See Oberlander v. Oberlander, 460 N.W.2d 400 (N.D.1990); Stein v. Olhauser,

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Wanner v. Getter Trucking, Inc.
466 N.W.2d 833 (North Dakota Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
466 N.W.2d 833, 1991 N.D. LEXIS 36, 1991 WL 27268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wanner-v-getter-trucking-inc-nd-1991.